Raich as ConLaw Doctrine
on Jun 6, 2005 at 2:21 pm
I agree with Orin’s post below that the Stevens opinion breaks no new ground, and is a fairly unremarkable extension of where the governing precedents would lead. Indeed, that’s why I thought the opinion would be 9-0 (or 8-1), and written by the Chief Justice — because to invalidate this law, even as applied to a creatively defined “class” of possessions, would have meant going well beyond Lopez and Morrison, and giving some real teeth to the so-called federalism revolution.
Lopez and Morrison were only radical insofar as they reflected where the new majority would be willing to go in the future. In and of themselves, they did not impinge on Congress’s power to any appreciable extent, for all of the reasons discussed in the separate opinions in those cases. For instance:
— As Justice Breyer noted in dissent in Morrison, as long as Congress adds a “jurisdictional element,” a previously unconstitutional statute can be readily salvaged. And that’s exactly what Congress did after Lopez: it enacted a statute that made possession of handguns near schools unlawful if the gun had traveled in interstate commerce. This strategy would be unavailable only if the Court were willing to overrule cases such as Bass and Scarborough, and Green and Stirone — but there was no signal in Lopez and Morrison that the Court was prepared to take such a step.
— As Justice Thomas complained in his Lopez concurrence, the “substantially advance” test ironically gave Congress the power to regulate the exact same activity by making it part of a broader and more restrictive regulation. “No gun possession,” in other words, would be constitutional, even if the lesser-included “No gun possession near schools” would not be. Raich makes that point crystal clear, much to the chagrin of the dissenters. Indeed, O’Connor makes the very same Thomas point at page 5 of her dissent today. (Justice Stevens’s response, in footnote 34 — one that seems right to me — is that political checks will generally curb Congress’s power to act so comprehensively simply as a pretext for reaching the narrower class of activities. No one in Congress or the Clinton Administration proposed a total handgun possession ban as a way of ensuring that guns did not end up near schools.)
— Justice Kennedy’s separate opinion in Lopez indicated that Congress basically has carte blanche to regulate anything that occurs “in the commercial sphere,” which I took to mean anything that occurs in or with respect to commercial enterprises. (OSHA regulations, for instance, are themselves generally noneconomic in nature — but they are applied to commercial entities.) Similarly, the Court’s continued reaffirmation of Perez indicated that it would embrace a very broad notion of what constitutes “economic activity.” (See Justice Thomas’s concurrence in Sabri.)
— And then there’s Wickard itself, of course. One got the sense that the Lopez and Morrison courts were not too fond of Wickard, but were willing to nominally affirm it as long as it could be narrowly described and its precedential import contained. But at some point, the Court would have to overrule Wickard, or distinguish it away to nothing, if it were to place serious constraints on Congress — and today’s decision suggests that we’ll be waiting quite a while longer for that day to come. Indeed, the Court is unlikely to abandon Wickard-like attenuation analysis anytime soon, because such analysis comes in very handy when there’s a statute that the Court wishes to uphold. Just two years ago, for instance, the Court unanimously upheld a federal statute requiring states to make certain hazardous-road reports inadmissible as evidence in state-court proceedings. This statute fell within Congress’s Commerce Clause power to protect channels of commerce, reasoned the Court, because of the following possible causal chain: Requiring such an evidentiary rule would make it more difficult for would-be plaintiffs to obtain evidence to support negligence actions against state and local governments, which would in turn “result in more diligent [government] efforts to collect the relevant information, more candid discussions of hazardous locations, better informed decisionmaking, and, ultimately, greater safety on our Nation’s roads.†The writer of this opinion, which makes Wickard‘s causal chain look direct and obvious by comparison? None other than Justice Thomas.
Therefore, what’s really notable about today’s decision is that it was not 9-0, but was instead 6-3. The dissenters realized that if the federalism revolution were going to bear real fruit, some serious doctrinal movement would be necessary — and they were willing to say so. The fact that only one-third of the Court was willing to take the plunge indicates that Lopez and Morrison do not presage any serious constraints on Congress by this Court — and that’s much bigger news, and a much more momentous victory for Justice Stevens, than a 9-0 decision would have been.
